what is lawful when done by one can be unlawful when done by many is discussed on the assumption that the individual may be a match for one, but helpless against several, overlooking the fact that the converse may also be true, and the further fact that much may depend on the rules and regulations by which the matching is controlled.64

There are evidences, however, of changing views and a gradual recognition of the fact that, if the economic, social and legal premises which underlie the decisions are sound, many of the decisions which justify strikes under certain conditions are unsound and that those which prohibit them absolutely can at least lay a greater claim to consistency. Law never considers power among those who are sui juris. It is a question of right and wrong, the antithesis of force, and only comes into existence when brute strength and power are made to submit to the peaceful and persuasive voice of reason. Damnum absque injuria has to do with that which has a direct relation to the advance of one's own or the public's legal right and interest and the principle cannot be invoked to justify interference with the right and interest of another party. "A man can damage me and not do an unlawful act (injury), as if the sheriff arrests me, this is damage because he restrains me of my liberty, but this is not unlawful. So if an artificer gets more customers than another of the same art as a money broker or a schoolmaster who has more pupils than another, because he is more learned - this is damage to the other but not unlawful because every one ought to prefer himself. . . ." 65

A strike cannot be justified on the ground of damnum absque

64 Cf. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 439 (1911); also the reasoning of Bowen, L. J., and Lord Esher, M. R. in Mogul S. S. Co. v. McGregor. 65 Y. B. 12 HEN. VIII, 3 pl. 3: Brook, J.: "et ho(mm)e poit fair(e) dam(mage) a moy, et ne fair(e) injury; come si le Vic(ont) m(e) arreste, c(eo) est dam(mage), p(ur) c(eo) q(ue) il me restrain(e) de ma libertie, mes c(eo) n'est injury. Issint si un artificier acquir(e) a luy plusieurs customers que autr(e) de mesme l'art; come Scrivener, ou Schoolmaster qui ad plusieurs disciples que aut(re), p(ur) c(eo) q(ue) il e(st) plu(s) erudite, c(eo) e(st) dam(mage) a l'aut(re), m(e)s nemy injury, p(ur) ceo que chescu(n) doit preferr(e) luy m(esme), et n'e(st) punissable. Come si l(e) S(eig)n(eu)r bate s (on) villein, ou 1(e) bar(on) sa fe(mm)e, ou on bate un ho(mm)e utlage ou traitr(e), ou pagan, ils n'auront acc(ion), p(ur) ceo que ils ne sont p(as) abl(e) de suir action: mes icy il ad pris non chie(n) et coment que soit chose de plaisir, uncore j'ay propriete en ceo."

For other examples see I ROLL ABR. 107 pl. 11, 12, 13, 15; Y. B. 11 HEN. IV, 47 pl. 21; Y. B. 22 HEN. VI, 14 pl. 23; cf. Y. B. 7 ED. III, 50 pl. 25.

injuria or as lawful "competition" without at the same time admitting an interest of the strikers in and to the business. A general social interest is not enough, for a right based on such an interest can never exceed the bounds of peaceful persuasion.

A strike is not merely a simultaneous quitting of work in the exercise of one's own right not to work. The object of a strike is to exert such a compulsion as will compel surrender. A leading Massachusetts case 66 frankly states the matter as follows:

"Speaking generally a strike to be successful means not only coercion and compulsion which, for practical purposes, are irresistible. A successful strike by laborers means, in many if not in most cases, that for practical purposes the strikers have such a control of the labor which the employer must have that he has to yield to their demands. . . .

"The effect of this (the action of the strikers) in the case at bar appears to be that the contractors are forced against their will to give the work of pointing to the masons and bricklayers. But the fact that the contractors are forced to do what they do not want to do is not decisive of the legality of the labor union's acts. That is true wherever a strike is successful. . . .

"Further, the effect of complying with the labor union's demands apparently will be the destruction of the plaintiffs' business. But the fact that the business of a plaintiff is destroyed by the acts of the defendants done in pursuance of their right of competition is not decisive of the illegality of the acts. . . .

This doctrine naturally required limitations if the semblance of law was to be preserved and the court effected the compromise by limiting the "right" to the particular employer with whom the dispute existed,67 thus greatly weakening, if not neutralizing, the decision's seeming measure of altruism. But, as intimated, this inconsistent and unsatisfactory handling of labor controversies by the courts is coming to be recognized by the courts themselves. In

66 Pickett v. Walsh, 192 Mass. 572, 581, 584 (1906).

67 Pickett v. Walsh, supra, pp. 587, 588: . . . "In our opinion organized labor's right of coercion and compulsion is limited to strikes against persons with whom the organization has a trade dispute; or to put it in another way, we are of opinion that a strike against A, with whom the strikers have no trade dispute, to compel A to force B to yield to the strikers' demands, is an unjustifiable interference with the right of A to pursue his calling as he thinks best. . . . It is settled in this Commonwealth by a long line of cases that a defendant is liable for an intentional and an unjustifiable interference with the pursuit on the part of the plaintiff of his calling, whether it be cf labor or business."

a late federal case dealing with a threatened boycott, Judge Hough, while stating that it was useless to parade the decisions bearing on such controversies, because reconciliation was impossible, went on to say:

66

. . . In the United States Courts for this circuit, National Fireproofing Co. v. Mason Builders' Ass'n, 169 Fed. 259, 94 C. C. A. 535, 26 L. R. A. (N. S.) 148, is controlling. It accepts the New York cases fully, piously regrets the injuries committed, and writes the epitaph of litigation such as this by declaring that, when equal rights clash, equity is helpless. This is true; it would have been just as true to point out that the result of legalizing strikes, lockouts, and boycotts under any circumstances must be that those who understand the use of such legal tools can always keep within the law and accomplish their main purpose while inflicting all necessary 'incidental' injury." 68

The Coppage case 69 recently decided by the Supreme Court illustrates perfectly the present legal conception of labor, and of its relation to capital and to business, and it would be difficult to find a case showing greater confusion in the law or one showing more clearly that this confusion is due solely to the inability to recognize the public nature of labor and capital. The question presented was whether an employer could require or "coerce" an employee as a condition of securing or continuing in employment to enter into an agreement not to become or remain a member of a labor union. The Supreme Court had already held in the Adair case 70 that the employer could discharge an employee for that reason or for no reason, and unless the cases were distinguishable or the Adair case was to be overruled there was no occasion for extended discussion. The Kansas court in sustaining the statute involved had distinguished the Adair case, but there was a vigorous dissent by one of the Justices, who said that:

"The law obviously was not passed because any person seriously believed its enforcement would result in real benefit to the laboring men or to labor unions. It is like the old soldier's preference law, and similar enactments, 'that keep the word of promise to our ear and break it to hope.' After reading the majority opinion, members of labor unions may rest for a time under the delusion that the legislature, in the exercise

our

68 Gill Engraving Co. v. Doerr, 214 Fed. 111, 121 (D. C., S. D., N. Y., 1914). Coppage v. Kansas, 236 U. S. 1 (Jan. 1915).

69

70 208 U. S. 161 (1908).

of the police power, has reached out its strong arm to shield the laboring man from the attempts of his employer to deprive him of the right to become and continue a member of a labor union, and that the construction placed upon the act by the court has made the legislation effective to accomplish the purpose, but a perusal of former decisions of this court will cause the delusion to disappear." "1

The statute was declared unconstitutional by the Supreme Court in a majority opinion in which the Adair case was followed and reaffirmed, but two Justices, who may be designated as the minority Justices, and a single Justice filed separate dissents arguing in favor of the constitutionality of the law. The minority argued that the Adair case was distinguishable that here the legislature had simply made a certain kind of condition in a contract illegal - a type of legislation of which there were many examples and from which this case was not so dissimilar as to require the statute to be held unconstitutional; but no effort was made to make any practical distinction between the two cases. The single Justice, who had dissented in the Adair case, dissented in this one, and for the reason that:

"In present conditions a workman not unnaturally may believe that only by belonging to a union can he secure a contract that shall be fair to him. . . . If that belief, whether right or wrong, may be held by a reasonable man, it seems to me that it may be enforced by a law in order to establish the equality of position between the parties in which liberty of contract begins." 72

But the majority and the minority Justices, like the Judges in the court below, were evidently unwilling to rest their decision on technical grounds and the discussion took a wide range in which the rights of an employee to join a union, the rights of employers to organize, the comparative rights of employer and employee as contracting parties and the inequality of the position, the public interest in trade unions and the menace to the personal rights of laborers were adverted to, but no issues were joined under any of these heads. All of the Justices assume that they are dealing with a contractual relation. To the majority this statute has no conceivable relation to the police power, and so "interference" with the employer's rights is without precedent and unwarranted. The minority hold that the statute does not interfere with the liberty of 71 87 Kan. 752, 760 (1912). 72 236 U. S. 1, 26–7 (1915).

contract any more than some other statutes which have either been held or would undoubtedly be held good.

The decision is important. As the minority observed, it not only invalidates the legislation of Kansas but necessarily decrees the same fate to like legislation of other states of the Union, comprising altogether nearly half the population of the United States. But its importance does not lie so much in its immediate as in its remote effects, and in the things which are left to be decided rather than in those which are decided. The underlying difficulty lies in the opposite conceptions of public interest, and the same is true of Pickett v. Walsh and most of the other labor cases. In Pickett v. Walsh the court looks at capital as the private interest of a few individuals and at labor as the private interest of a few other individuals, which interests conflict or compete, whereas in fact, and at common law, labor and capital cannot compete or conflict. So in the Coppage case the difficulties the Justices meet are due to their failure to distinguish between the rights of an individual who hires men and of an individual who is hired as contrasted with the communal right with respect to the capital and the labor. The essential question is not whether a laborer has a right to join an organization or a business man to hire on any terms he chooses, but it is whether the community has any interest in the labor and capital applied to business. The fact is that the members of the community, who perform its business functions, are but as "links in a long chain" into which the very spirit of progress fashions them. If one link has no claim against the other links, no interest in their integrity, no right to insist that each perform its function "as it ought," the whole basis for the association ceases to exist and the association itself becomes farcical and absurd.

To-day the situation of the dispensable members of businesses is in these respects, as we have seen, one of rightlessness under the law, and often it is claimed of economic subjection, resembling in this respect the condition of the serfs of the middle ages "who did not know in the evening what they were to do the next day." 73 The serf as known in England had many rights, he was not a slave,74

73 BRACTON, DE LEGIBUS ANGLIAE (Ed. London, 1640), p. 26: "Est enim purum villenagiu(m), à quo praestatur servitiu(m) incertum & indet(er)minatu(m), ubi sciri non poterit vesperè, quale servitium fieri debet manè, vz. ubi quis facere tenetur, quicquid ei praeceptum fuit."

74 Compare POLLOCK AND MAITLAND, I HISTORY OF ENGLISH LAW, p. 429. VINOGRADOFF, VILLAINAGE IN ENGLAND, pp. 43 et seq., 152.